From: steff@inet.uni2.dk
Date: Wed, 18 Nov 1998 00:08:06 +0100 (MET)
Subject: [euroletter] EUROLETTER 65
EURO-LETTER
No. 65 November 1998
The Euro-Letter is published on behalf of ILGA-Europe - The
European Region of the International Lesbian and Gay Association
by Gay and Lesbian International Lobby in co-operation with The
Danish National Association for Gays and Lesbians.
Editors: Steffen Jensen, Ken Thomassen, Peter Bryld, Lisbeth Andersen and
Soeren Baatrup.
Contact to Euro-Letter:
E-mail:steff@inet.uni2.dk
URL: http://www.steff.suite.dk
Fax: +45 4049 5297 Tel: +45 3324 6435 Mobile: +45 2033 0840
Mail: c/o Steffen Jensen, Gl. Kongevej 31, 4.th, DK-1610 Copenhagen V, Denmark
You can receive Euro-Letter by e-mail by sending an empty
message to euroletter-subscribe@egroups.com
and from no 30 onwards the Euro-Letters are available on the Internet at
http://www.steff.suite.dk/eurolet.htm and at
http://www.france.qrd.org/assocs/ilga/euroletter.html
******************************************
IN THIS ISSUE
FIRST BREAK-THROUGH FOR LEGAL RECOGNITION OF HOMOSEXUALS IN
GERMANY
DUTCH CABINET OKS GAY ADOPTION
DECRIMINALISATION IN BELARUS CONFIRMED
CHANGES IN THE LATVIAN CONSTITUION
EUROPEAN UNION LAUNCHES ITS HUMAN RIGHTS AGENDA FOR THE YEAR 2000
WILL HUMAN RIGHTS BE IGNORED IN ELECTION FOR EUROPE'S TOP HUMAN
RIGHTS JOB?
UPDATE ON AUSTRIA
COURT CONDEMNS DUTCH MP FOR OFFENDING HOMOSEXUALS
Documents relating to ILGA-Europe can be found at ILGA-Europe's
homepage http://www.steff.suite.dk/ilgaeur.htm
An update of the Survey on the Legal Situation for Gays and
Lesbians in Europe can be found at
http://www.steff.suite.dk/survey.htm
A description of partnership laws and other laws regarding
same-sex partners can be found at
http://www.steff.suite.dk/partner.htm
Consolidated versions of the basic treaties of the European
Union including amendments from the Amsterdam Treaty can be
found at this web-site:
http://ue.eu.int/Amsterdam/en/traiteco/en1.htm
***********************************************
FIRST BREAK-THROUGH FOR LEGAL RECOGNITION OF HOMOSEXUALS IN GERMANY
Press Release by Volker Beck (Member of the Federal Parliament
of Germany; spokesperson for legal affairs, League'90 / The
Greens) (Translated by Dorian Haseloff)
The advent of the red-green government brings a clear change in
policies for gay men and lesbians. The "promotion of tolerance,
the respect for mino- rities and the strengthening of their
rights" is laid down in the coalition contract as one of the
objectives of the new Federal Government in Germany.
In the field of interior and legal policy it was agreed:
"The new Federal Government will protect minorities and work to
achieve their equal treatment and full social participation.
Nobody should be discriminated against on account of his/her
disability, origin, colour, ethnic affiliation or sexual
orientation as a gay man or a lesbian. To this end, we will
initiate a law against discrimination and for the promotion of
equal treatment (among other things with the introduction of a
legal institution of the "Registered Partnership" with rights
and obligations). The recommendations of the European Parliament
on the equal rights of les- bians and gay men will be consulted."
Tough negotiations were held on this issue. The
Social-Democratic Party was originally unwilling to deal with
the question of gay and lesbian partnership in the coalition
contract. In this case, League'90 / The Greens were able to push
this through.
It is important to stress that the coalition contract says in
the case of "Registered Partnership", no legal rights are
excluded. Thus statements by Social- Democratic politicians that
homosexual couples will, for instance, not be recognised for the
purpose of taxation, are not in accordance with the text of the
coalition contract.
League'90 / The Greens will insist strongly that the same rights
be granted to gay and lesbian couples as to married couples.
The work has not come to an end for us. Gay and lesbian groups
and associations will have to continue to fight to achieve true
equality until the Federal Parliament passes the law on
registered partnership.
We shall only achieve this only with united efforts.
With the planned anti-discrimination law, Germany will keep pace
with developments in Europe. This gives the clear signal that
gay men and lesbians should no longer be second-class citizens.
DUTCH CABINET OKS GAY ADOPTION
By WILLIAM J. KOLE (AP)
The Dutch Cabinet has approved a plan to let homo- sexuals adopt
children, accelerating a push to expand gay rights in the
country in time for the new mille- nnium.
The legislation, approved late Friday by top ministers of Prime
Minister Wim Kok's coalition government, would restrict
adoptions to Dutch children. It will go before parliament,
probably early next year, in a drive to have it become law by
Jan. 1, 2000.
Under the proposal, gays and lesbians would not be allowed to
adopt children from abroad out of respect for other countries'
laws, and out of concern that international adoption agencies
would stop approving adoptions to all Dutch couples,
heterosexuals included.
The plan would limit the right to adopt to homo- sexual couples
who have lived together for at least three years and who have
cared for the child for a full year. It would not require a
couple to marry or legally register their partnership.
Prospective gay parents would have to demonstrate in court that
the child they wish to adopt would be better off with them, Kok
said.
The legislation, said to have broad backing in parlia- ment,
revives a push that began several years ago to further expand
the rights granted to homosexuals under Dutch law.
A new law took effect on Jan. 1 permitting same-sex couples to
marry and giving them the same pension, social security and
inheritance rights as married heterosexual couples.
There was no discernible protest over Friday's Cabi- net
approval in the liberal Netherlands, which is among the few
countries to allow same-sex marriage and has welcomed
homosexuals to serve openly in the military since the 1970s.
Recent public opinion surveys have shown that seven in 10 Dutch
people think homosexuals could make good parents.
In the past, however, Roman Catholic leaders in the Netherlands
have been among those opposed to homosexual adoption on moral
and biblical grounds.
Denmark, Norway, and Sweden also legally recognize gay
partnerships but have not allowed them to adopt. Some U.S.
states allow homosexual adoption and a few forbid it.
Germany's new center-left government indicated this week that it
intends to grant some sort of legal status to same-sex couples,
but not an outright "gay mar- riage'' and not the right to adopt
children.
In France, a bill aimed at giving legal status to unmarried
couples has triggered fierce debate and street protests amid
fears among conservatives that it could legalize homosexual
marriage and lead to gay adoption.
DECRIMINALISATION IN BELARUS CONFIRMED
by Kurt Krickler, HOSI Wien
In Euro-Letter # 57 (February 1998), doubts were expressed about
whether decriminalisation of the total ban on homosexuality had
taken place in Belarus (Art. 119-1 of the Belarusan penal code)
as reported in Euro-Letter # 55.
These doubts were unfounded as it was clear from various sources
that a reform must have taken place between April 1993 (ILGA
Eastern Europe confe- rence in Vienna) and July 1996 (AIDS
conference in Vancouver). The recently founded "Belarus League
for Freedom of Gays, Lesbians, Bisexuals - Belarus Lambda League
(BLL)" has now confirmed that decriminalisation happened on 1
March 1994.
BLL, by the way, is interested in getting in contact with groups
in other countries and getting material from abroad. Please,
write to BLL, P.O.Box 23, BY-220006 Minsk, Belarus.
CHANGES IN THE LATVIAN CONSTITUION
By Juris Ludvigs Lavrikovs
On 15 October 1998 the Saeima (Latvian Parliament) adopted and
the President of the Republic announced the law "On Amendments
to the Satversme (Constitu- tion) of the Republic of Latvia
("Latvian Herald", Nr.308/312, October 23, 1998). Under this
law the 1922 Satversme, which was reintroduced after the
regaining of independence from the Soviet Union, is amended by
the addition of a new Section 8 "Basic Human Rights".
In 1922 the Satversmes sapulce (Constituent Assem- bly) could
not agree on this section, which laid down fundamental freedoms
and rights, for political reasons. Therefore until recently
Latvia was almost the only country in Europe whose constitution
did not contain any provisions on human rights.
In 1991 so-called constitutional law "On the Rights and Duties
of the Citizen and the Individual" was adopted. Article 12 of
this law contained a list of grounds on the basis of which
discrimination was prohibited. Sexual orientation was not
included. Also this was a "closed-end" list, that is, it
contained no formula such as "other (comparable) grounds" which
may have allowed the article to be interpreted as covering
sexual orientation. Another problem with this law was that the
Latvian legal system does not recognise laws of this category as
constitutional.
Recent constitutional reform not only provides for
constitutional protection of human rights in Latvia but also
opens up the possibility of interpreting of the Satversme as
protecting individuals from discrimi- nation based on their
sexual orientation. Under the law "On Amendments to the
Satversme (Constitution) of the Republic of Latvia" the 1991
constitutional law "On the Rights and Duties of the Citizen and
the Individual" is loses its force and the new Section 8 of the
Satversme is introduced. According to new Article 91 of the
Satversme "all people in Latvia are equal before the law and the
courts. Human rights shall be exercised without any
discrimination". Thus the article does not contain a list of
grounds on the basis of which discrimination is prohibited, but
simply states that "any discrimination is prohibited."
Although theoretically it seems that Article 91 provides
protection from discrimination on grounds of sexual orientation,
it is up to the future case law or official explanation to
clarify whether this is the case.
EUROPEAN UNION LAUNCHES ITS HUMAN RIGHTS AGENDA FOR THE YEAR 2000
By ILGA-Europe
Comite des Sages recommends that sexual orientation
discrimination be more systematically addressed through a
European Commission action plan and the development of a draft
directive on equal treatment.
At a conference in Vienna 9-10 October 1998, the human rights
agenda for the EU for the year 2000 was launched and debated by
high-level experts and officials, including from the European
Commission, the European Parliament and the Council of Europe.
This agenda is the result of the European Commis- sion sponsored
project "A human rights agenda for the European Union for the
Year 2000" carried out by an expert team led by Professor Philip
Alston, head of the Department of Law at the European University Institute in
Florence. This project is marking the 50th anniversary of the
Universal Declaration of Human Rights to be celebrated in
December 1998 and is intended to formulate a comprehensive
future human rights policy for the EU. Based on the extensive
Final Project Report prepared by this expert team, a Comite des
Sages has elaborated the human rights agenda for the EU for the
year 2000. The Comite des Sages consisted of Antonio Cassesse,
President of the International Criminal Tribunal for the
former Yugoslavia, Catherine Lalumiere, member of the European
Parliament and former Secretary-General of the Council of
Europe, Peter Leuprecht, former Deputy Secretary-General of the
Council of Europe, and Mary Robinson, UN High Commissioner for
Human Rights.
Both the final project report and the agenda have now been
published and both refer to human rights of lesbians and gays.
The conclusion and recommen- dation of the expert team that
"Discrimination based on sexual orientation continues to be
widespread and should be more systematically addressed through a
Commission action plan and the development of a draft directive
on equal treatment" (paragraph 208 of the Final Project Report)
was included in full text in the agenda of the Comite des Sages
(paragraph 12).
"This reference is, after Article 13 TEC as amended by the
Treaty of Amsterdam, another clear and strong commitment and
mandate for the European Union to combat sexual orientation
discrimination and to treat it in the same line as other human
rights violations", states ILGA-Europe co-chair Kurt Krickler
who attended the two day-conference in Vienna. "And it is
another lobbying success of ILGA-Europe because ILGA-Europe had
submitted a contribution on sexual orientation discrimination
to the expert team which was prepared by Mark Bell, a PhD
researcher at the European University Institute in Florence,
and supplemented by the recommendations of ILGA-Europe's report
'Equality for lesbians and gays men - A relevant issue in the
civil and social dialogue' published last June."
The agenda and the final project report, two key documents on
human rights in the European Union indispensable for all working
and lobbying in this field, have been posted on the internet at
www.iue.it/AEL/welcome.html. French and German translations of
these documents are supposed to also be available at this
website by 16 October.
WILL HUMAN RIGHTS BE IGNORED IN ELECTION FOR EUROPE'S TOP HUMAN
RIGHTS JOB?
By ILGA-Europe
1999 sees the election of a new Secretary-General of the Council
of Europe. ILGA-Europe strongly supports the work of the Council
of Europe in setting and maintaining Europe-wide human rights
standards. It is most concerned that the human rights record of
individual candidates be given proper attention in the election process.
The existing rules for the election make no reference to a
candidate's human rights record.
ILGA-Europe has therefore written to the Foreign Ministers of
the 40 member states, and to the 286 national Representatives to
the Parliamentary Assembly, proposing that a clear commitment to
the human rights standards of the Council of Europe be an
essential election criterion. ILGA-Europe is also recommending
that Non-Governmental Organisations and other independent organisations
in the human rights field be invited to submit evidence on the
human rights record of all candidates, so that the shortlisting
of candidates takes place in full know- ledge of the essential facts.
For its part, ILGA-Europe is submitting evidence in respect of
its field of competence. It has already expressed grave concern
at the record of the current favourite to win the election,
Walter Schwimmer. In the Austrian Parliament Mr Schwimmer has on
several occasions voted against law reforms intended to bring
Austrian legislation in line with the human rights standards of
the Council of Europe. In parti- cular, he voted to deny the
fundamental rights of freedom of expression and freedom of
association to lesbians and gay men (guaranteed under Articles 10 and 11 of the
European Convention on Human Rights) and against the removal of
discriminatory age of consent laws for gay men (despite a ruling by the European
Commission on Human Rights that such laws contravene the Convention).
He also voted to refuse compensation to the lesbian and gay victims of the
Nazis,
criminals being the only other group imprisoned under the Nazis
in Austria denied such compensation. [Further information on Walter Schwimmer's
record, and on the relevant Articles of the Austrian penal code,
is given below]
ILGA-Europe considers that the case of Walter Schwimmer
illustrates beyond doubt the need for the Council of Europe to
give proper consideration to the human rights record of all
candidates for its top job. The election of a person who has
opposed implementation of the Council's own standards
would be greatly damaging to its all-important human rights
work. It would give the impression that the Council did not take
its own human rights standards seriously, and leave the Council
with a Secretary- General whose moral authority to insist on
compliance with these standards by member states was gravely
weakened. It would also undermine the Council's reputation with
all those concerned for human rights in Europe, and, not least,
with Europe's 50 million lesbian, gay, bisexual and
transgendered people.
ILGA-Europe places the greatest value on the human rights work
of the Council of Europe. This, together with its concern for
the rights of lesbian, gay, bisexual and transgendered people,
has caused ILGA-Europe to call upon Europe's Foreign Ministers
and the Representatives to the Parliamentary Assembly to secure
the withdrawal of the candidacy of Walter Schwimmer.
ADDITIONAL INFORMATION
THE COUNCIL OF EUROPE
The Council of Europe's main role is to strengthen democracy,
human rights and the rule of law throughout its member states.
Founded in the wake of the Second World War, it is the continent's
most important human rights organisation, with some 40 member
states committed to observing its human rights standards.
The European Convention on Human Rights is the most significant
of its many human rights treaties. Complaints of violations of
this Convention are settled by the European Court of Human
Rights (until October 1998 aided by the European Commission on
Human Rights).
The Council of Europe is governed by the Foreign Ministers of
its member states (who together form its decision-making body,
the "Committee of Ministers") and by Representatives from their
parliaments (who make up its "Parliamentary Assembly", a
deliberative body which elects the Secretary-General). The
Secretary-General has a crucial role, as head of the
International Secretariat, in promoting the human rights
standards of the Council, and in ensuring the efficient
operation of the Council as a whole. More information on the
Council can be obtained from is website, www.coe.fr
WALTER SCHWIMMER'S RECORD
In 1995 Walter Schwimmer voted against an amend- ment to the
Federal Nazi Victim Compensation Act whose purpose was to make
compensation available to homosexual victims of the Nazis. The
amendment was defeated. Criminals were the only other group
imprisoned under the Nazis to whom such compensation was not
made available. The thinking inherent in Mr Schwimmer's
position, that homo- sexuals are no better than criminals,
conflicts with the judgements of the European Court of Human
Rights in the Dudgeon, Norris and Modinos cases.
In 1996 he voted against the repeal of Articles 220 and 221 of
the Austrian penal code. Article 220 effectively made illegal
the publication of information about homosexuality, in violation
of Article 10 of the European Convention, which guarantees
freedom of expression. Article 221 effectively banned the
formation of organisations for homosexuals, in
violation of Article 11 of the European Convention.
In 1998 he voted against the abolition of a discriminatory age
of consent for male homosexuals (Article 209), despite the
ruling in 1997 of the European Commission on Human Rights in
the Sutherland case that such a law violated Article 8 of the
Convention, taken in conjunction with Article 14.
The Commission's conclusion read as follows:
"66. Consequently, the Commission finds that no objective and
reasonable justification exists for the maintenance of a higher
minimum age of consent to male homosexual, than to heterosexual,
acts and that the application discloses discriminatory treatment
in the exercise of the applicant's right to respect for private
life under Article 8 of the Convention.
67. The Commission concludes, by fourteen votes to four, that in
the present case there has been a violation of Article 8 of the
Convention, taken in conjunction with Article 14 of the Convention."
THE AUSTRIAN PENAL CODE: INFORMATION ON THE FORMER ARTICLES 220
AND 221, AND THE EXISTING ARTICLE 209
Although the complete prohibition of consensual homosexual acts
in Austria was repealed in 1971, new laws were introduced with
provisions which were profoundly discriminatory:
a. Article 220 (which was repealed in 1996) effectively banned
the publication of information about homosexuality, violating
Article 10 of the European Convention. The text of Article 220 reads as follows:
"A person who by means of printed matter, film or in any other
public manner incites to lewd homosexual acts or to acts of
lewdness with animals or who approves publicly of such acts in
such a way as to encourage lewd acts is to be sentenced to a
prison term of up to six months or a fine up to 360 x a fixed
daily rate, which sentence can only be suspended if a more
severe sentence is pending".
The phrase "who approves publicly of such acts in such a way as
to encourage lewd acts" was so broad in scope as to make illegal
any non-condemnatory presentation of homosexual relationships.
While convictions under this law were rare, the threat of prosecution
was used relatively frequently by the police in the 1970s and
early 1980s to harass the lesbian and gay movement. The
existence of the law was also used by public authorities as a
justification for refusing services to lesbian and gay
organisations. Finally, the law was used to confiscate safe-sex
material, the most recent occasion being in 1994, when the
Regional Court of Wels ordered the confiscation of a safe sex
video shown by AIDS-Help of Upper Austria at an AIDS prevention
event.
b. Article 221 (also repealed in 1996) banned the formation of
any organisation which promoted "lewd homosexual acts", thus
effectively banning lesbian and gay organisations, in violation
of Article 11 of the European Convention. The text of Article
221 read as follows:
"A person who founds an organisation of a larger number of
persons, the purpose of which is, even though not exclusively,
to further lewd homosexual acts and which is apt to constitute a
public nuisance, furthermore, anyone who is a member of such organisations or
recruits members for it, is to be sentenced to a prison term of
up to six months or a fine of up to 360 x a fixed daily rate."
Again, the phrases "to further lewd homosexual acts" and "apt to
constitute a public nuisance" were so general, and so ill
defined, as to leave any organi- sation for homosexuals open to
prosecution. While there were no convictions under this law, the
threat of prosecution was also used by the police to harass the
lesbian and gay movement in the 1970s and early 1980s.
c. Article 209 (still in force) established an age of consent of
18 for male homosexuals, compared to 14 for heterosexuals. There
are typically 50 police investigations and 20 convictions each
year under this law.
UPDATE ON AUSTRIA
By Helmut GRAUPNER, Rechtskomitee LAMBDA, Vienna
In October the Austrian coalition Platform Against Art. 209 took
the offensive to get international human rights organs to
condemn Austria for its discrimina- tory higher age limit for
gay male sex (18) as compared to heterosexual and lesbian sex
(14) (Art. 209 CC).
Already last year the Platform supported two cases be put to the
European Commission on Human Rights. These two cases, submitted
on the International Human Rights Day 1997 (10.12.), consist of
applications of young men (in their twenties) convic- ted under
Art. 209 CC (to imprisonment) for con- sensual sexual relations
in private with male adolescents between 14 and 18 (for details
see Euroletter 57, 5). The new case submitted recently exactly
parallels the Sutherland-Case with a 17year old gay male
adolescent (from the state of Salzburg) applying to the
Commission. His application however will not be dealt with by
the Commission anymore. From 01.11.1998 the Commission and the
(old) Court are replaced by the new European Court on Human
Rights. All applications submitted to the Commission and not yet
declared admissible will be transferred to this new Court. So
also the two applications mentio- ned above will be transferred.
With also the Sutherland-Case already submitted to the (old)
Court the new Court will at its very beginning be confronted
with a total of four (gay) age of consent-cases.
Currently the UN-Human Rights Committee considers Austria's
periodical report under the Interna- tional Convenant on Civil
and Political Rights (ICCPR). Platform Against Art. 209
therefore petitioned the Committee to highlight the violation of
the human rights of gay men in Austria and in its report to call
on Austria to repeal Art. 209 CC.
The European Commission Against Racism and Intolerance (ECRI) is
a body of the Council of Europe set up by the first summit of
heads of state and government of the member states of the
Council of Europe held in Vienna in October 1993. Its activities
which are multidisciplinary and wide-ranging are (amongst
others) to formulate general policy recom- mendations to member
states and to elaborate country-by-country reports thereby
examining the situation in each member state with a view to
drawing up concrete tailor-made proposals to each government.
Platform Against Art. 209 petitioned the Commission to "urge
the Republic of Austria immediately to repeal Art. 209 of the
Austrian penal code and to pardon all persons convicted
according to this law, for instance in (its) country-report on
Austria".
Finally Platform Against Art. 209 also petitioned the European
Parliament to continue its highly appreciated committed
support for the human rights of gay men in Austria and (after
the entry into force of the Treaty of Amsterdam) to initiate the
procedure under Art. 7 TEC (concerning the suspension of rights
of a member state consistently and seriously violating human
rights).
The text of the three petitions can be obtained from Platform
Against Art. 209. The application(s) to the European Commission
on Human Rights are not available due to the confidentiality of
the proceedings.
Platform Against Art. 209 is a non-partisan and
interdenominational coalition uniting 34 organisations against
the discriminatory higher age of consent for gay males (18) than
for heterosexuals and lesbians (14) (Art. 209 CC). The coalition
consists not only of nearly all associations of the Austrian l/g
movement but (to about half) mainstream-organisations, as Aids-
Service-Organisations, the Permanent Conference of the Children-
and Youth-Ombudspersons of Austria, the Austrian Federal Youth
Council, the National Students Union, the Austrian Probationary
Service, the Austrian Society for Sex Research and others.
COURT CONDEMNS DUTCH MP FOR OFFENDING HOMOSEXUALS
By Michiel Odijk
October 6, 1998, the The Hague Court condemned right-wing
Christian politician and member of the Dutch parliament Leen van
Dijke because of the offending nature of remarks he made about
homosexuals. In an interview two years ago, the MP told that
he considered homosexual people who practice their orientation
as in the same category as swindlers. In the court session Van
Dijke based his defence on the fundamental rights of religion
and speech.
The penalty "a fine of 300 guilders, about 140 US dollars, or
six days of imprisonment" was equal to the sentence as demanded
by the Officer of Justice. The judge did not want to take into
account that the leader of the Reformatory Political Federation
had shown remorse since the publication of the interview in 1996.
During the session two weeks ago Van Dijke also said that he had
been "silly" to approve the text of the interview before
publication.
Van Dijke reacted with dismay on the verdict that came as a
complete surprise to him. "I never had the intention to offend
people." he said. His lawyer S. Voogt told that almost certainly
they will appeal, if necessary even to the European Court. The
court ruled that Van Dijke wrongly tried to avoid a sentence
by referring to the freedom of religion and speech. These
liberties also have their limits, the court said. It is a
misunderstanding that under European law priority would be given
to these liberties. Moreover, the treaties are meant to offer
protection against discrimination. The defence that Van Dijke
did not intend to offend homosexuals, but intended to criticize
the hypocrisy in his own circles was unacceptable.
The court did take into account that Van Dijke had suffered from
the publicity in this case, and expressed this consideration in
the verdict.
Steffen Jensen
E-mail: steff@inet.uni2.dk
http://www.steff.suite.dk
Tel. +45 3324 6435 or +45 2033 0840 Fax: +45 4049 5297
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